Albert Torres Nieves v. State

Opinion issued July 14, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00294-CR
———————————
ALBERT TORRES NIEVES, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court
Harris County, Texas
Trial Court Case No. 1392793

MEMORANDUM OPINION

Appellant Albert Nieves was convicted of aggravated sexual assault of a

child under the age of 14 and sentenced to ten years’ confinement. We affirm.
 BACKGROUND

Appellant and his wife Brenda have two children. Brenda’s sister, Noemi,

and Noemi’s husband, Lincon, have three children, one of whom is the

complainant, Julie.1 The two families were very close; they would frequently

socialize and spend the night at each other’s homes. When Julie and her brothers

stayed at appellant’s apartment, Julie would sleep in the same bed with her

younger female cousin.

On Thursday, June 2, 2011, when she was 4 years’ old, Julie went with her

siblings to stay the night at appellant’s apartment.2 She woke up in the middle of

the night to a “weird feeling” from appellant licking her “privates.” He had pulled

off her pants and pulled her underwear down. At trial, she described his actions in

detail, and demonstrated his actions with two dolls. She testified that she was

scared and nervous to tell anyone. She said that this was not the first time

appellant had licked her private parts.

The following day, after Julie and her brothers returned home, Noemi

noticed that Julie was sucking her thumb, and “quiet and kind of angry.” When

Noemi asked Julie how the sleepover went, Julie responded, “with an angry face

and tone of voice, . . . ‘I don’t know why [appellant] always does this.’” When

1
We use the pseudonym “Julie” to refer to the minor complainant. See TEX. CODE
CRIM. PROC. ANN. art. 57.02(h) (West Supp. 2014).
2
Julie was 7 years’ old when she testified at appellant’s trial.
2
Noemi asked what Julie meant, she replied, “nothing.” Noemi testified that, a few

hours after this first interaction, Noemi pressed Julie to explain what appellant

always does to her. Julie responded, “He always pulls my pants down.” When

Noemi asked “what for?,” Julie told her that appellant licks her privates. Noemi

testified that “privates” is a phrase she and Julie would use to refer to female

genitalia.

Noemi took Julie into another room where her husband Lincon was reading

and asked Julie to tell Lincon what she had told Noemi. After Julie told Lincon

what appellant had done, they sent Julie off to play and discussed what to do.

Noemi called her brother Cesar to come over. Cesar in turn called Brenda and

appellant to come over to talk. When they confronted appellant, he denied the

allegations.

After Cesar and appellant’s family left, Brenda gave Julie a bath. Before her

bath, Julie had on the same clothes she had worn the previous night at appellant’s

apartment. Noemi asked Julie to pick up her dirty clothes off the bathroom floor

after her bath, but Julie forgot her underwear on the floor. It occurred to Noemi

the next morning, Saturday, to preserve the underwear, so she picked them up off

the floor and secured them in a ziplock bag. That night, she and Lincon decided to

take Julie to be examined at the pediatrician’s on Monday. Monday morning,

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Noemi took Julie to the pediatrician, who in turn directed Noemi to Texas

Children’s Hospital.

Julie was examined at Texas Children’s Hospital and later interviewed at the

Children’s Assessment Center. Sergeant J. McClure with the Crimes Against

Children Division of the Harris County Sheriff’s Office attempted to contact

appellant about the allegations, but appellant’s attorney called McClure to let him

know that appellant would not give him a statement.

DNA testing on Julie’s underwear revealed that Julie was a major DNA

contributor and that two males were minor contributors. Appellant could not be

excluded as a contributor.

A jury found appellant guilty of aggravated sexual assault of a child and

assessed punishment at confinement for ten years. The trial court entered

judgment on the jury’s verdict, and appellant brings this appeal.

ISSUES ON APPEAL

Appellant raises the following seven issues:

1. “Appellant was denied due process by trial counsel’s failure to
raise appellant’s ethnicity in relation to the DNA evidence.”

2. “Appellant was denied due process by trial counsel’s failure to
object to the prosecution’s statement that appellant’s DNA was
present in the complaining witness’ panties.”

3. “Appellant was denied due process by his own trial counsel’s
statement to the jury that appellant’s DNA was present in the
complaining witness’ panties.”

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 4. “Appellant was denied due process by trial counsel’s failure to
retain a DNA expert.”

5. “The cumulative effect of trial counsel’s error regarding DNA
evidence denied appellant of due process.”

6. “The trial court erred by admitting a second outcry statement
from the complaining witness.”

7. “The evidence was insufficient to support a conviction for
aggravated sexual assault of a child under 14 years of age.”

INEFFECTIVE ASSISTANCE OF COUNSEL
Appellants first five issue allege ineffective assistance of counsel.

A. Standard of Review

To determine whether appellant’s trial counsel rendered ineffective

assistance at trial, we must first determine whether appellant has shown that

counsel’s representation fell below an objective standard of reasonableness and, if

so, then determine whether appellant was prejudiced. Wiggins v. Smith, 539 U.S.

510, 522, 123 S. Ct. 2527, 2535 (2003); Strickland v. Washington, 466 U.S. 668,

688, 104 S. Ct. 2052, 2064 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex.

Crim. App. 2005). We must indulge a strong presumption that counsel’s conduct

fell within the wide range of reasonably professional assistance, and an appellant

must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.

Ct. at 2065; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). An

allegation of ineffective assistance must be firmly founded in the record, and the

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record must affirmatively demonstrate the alleged ineffectiveness. Thompson v.

State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Under normal circumstances,

the record on direct appeal will not be sufficient to show that counsel’s

representation was so deficient and so lacking as to overcome the presumption that

counsel’s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828,

833 (Tex. Crim. App. 2002). Rarely will the record on direct appeal contain

sufficient information to permit a reviewing court to fairly evaluate the merits of

such a serious allegation. Id. When a record is silent as to trial counsel’s strategy,

we “will not conclude the challenged conduct constituted deficient performance

unless the conduct was so outrageous that no competent attorney would have

engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

In addition, “appellant must show that this deficient performance prejudiced

his defense.” Bone, S.W.3d at 833. “This means that the appellant must show a

reasonable probability that, but for his counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id.

B. Parties’ arguments

In his first five issues, appellant argues that he was denied due process by his

counsel’s alleged ineffective assistance regarding his handling of the DNA

evidence at trial. Specifically, in his first four issues, appellant claims his counsel

was ineffective by (1) failing to “raise appellant’s ethnicity in relation to the DNA

6
evidence,” (2) failing to “object to the prosecution’s statement that appellant’s

DNA was present in the complaining witness’ panties,” (3) counsel’s “stat[ing] to

the jury that appellant’s DNA was present in the complaining witness’ panties,”

and (4) failing “to retain a DNA expert.” In his fifth issue, he claims the

cumulative effect of these alleged errors denied him due process.

The State responds that the “totality of representation afforded the appellant

was above the prevailing processional norms” and that, “without a record as to trial

counsel’s approach or reasoning for his decisions, none of the appellant’s claims

rebuts the strong presumption of a sound trial strategy.” The State also contends

that appellant has not shown harm.

C. The DNA evidence

Michal Pierce, a DNA analyst with the Harris County Institute of Forensic

Sciences, testified that she examined Jane’s underwear for DNA material. Pierce

described her experience employing methods of extraction, quantification,

amplification, and genetic analysis, as well as the protocols and safeguards that are

used to ensure the integrity of DNA tests.

Pierce explained the process, through DNA profiling, of labeling a person

“excluded” or as “included” as a possible contributor of DNA material. When

processing this type of sexual assault case, the laboratory ignores the female DNA

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and looks only at male DNA on examined items, resulting in a “Y profile.” Pierce

testified that the effect of examining only male DNA alters the statistics:

The only difference that we had when I’m doing my analysis is that I
need to keep in mind that for Y profiles, that is not individualizing. A
man’s Y chromosome is passed down directly from his biological
father to the point where everybody on your patrilineal side, your
biological father, your brother, your grandfather on the paternal side,
you-all have the same Y-STR profile. So, it’s not individualizing.
There’s several people in the world with that same Y profile.

So, the statistics will be smaller if I’ve made an inclusion as you see
here. Again, this is not necessarily from this case, but the numbers
will look like 1 in 1685 Caucasians, 1 in 1601 African-Americans, 1
in 285 Hispanics. So, that is always going to be true that your
statistics for your Y profiles will be lower if you have an inclusion.
Pierce testified that analysis of Julie’s underwear revealed two different

males contributed to the Y profile. Comparisons with appellant’s DNA indicated

that appellant could not be excluded as a contributor to this Y profile. Pierce then

again explained the statistical profiles generated when examining only Y profiles:

Q. What is the probability -- because you previously testified
that Mr. Nieves could not be excluded as a contributor to the DNA
that was found on the inside crotch of those panties. What was the
probability that he could not be excluded?
A. So, for the Y-STR profile where I said he could not be
excluded, the statistic I generated was 1 in 1,685 for Caucasians; 1 in
1,601 for African-Americans; 1 in 285 for Hispanics.
Q. So, does that mean that if you selected a random person --
can you kind of explain that statistic to us and how it compares?
A. Yes. It means that if I had -- what this stat is meaning
literally, if you took it in the literal context, if I had 1,685 Caucasian
males, by the statistic I would expect only one of those males to have
the profile that Mr. -- that the -- that Mr. Nieves, where he was

8
 consistent in the panties, that profile, that’s how common or rare that
profile is in terms of Y-STRs. It’s an approximate statistic. It doesn’t
mean that if there was 1,684 I wouldn’t find someone.

Appellant’s counsel cross-examined Pierce extensively about the limits of

the information derivable from her analysis. For example, the presence of male

DNA on Julie’s underwear does not indicate the source of that DNA (i.e., whether

it is from incidental contact or a bodily fluid such as saliva or sweat). Pierce could

not determine with a reasonable degree of scientific certainty whether the DNA

was deposited there through primary or secondary transfer (i.e., transferred through

direct contact or instead through Julie’s underwear coming in contact with a

surface upon which DNA material was previously shed). And, although the inside

of the underwear was swabbed for DNA testing, there is no way to ascertain how

the underwear was actually worn (i.e., right-side-in or inside-out).

Appellant’s counsel elicited testimony from appellant about why his DNA

material may have been found on Julie’s clothes. Appellant testified that, when

Julie stayed at his apartment (as well as when his family stayed overnight at Julie’s

family’s house), appellant helped make dinner for Julie and the other children. He

also helped Julie and the other children brush their teeth, wash their hands, and

assisted them when they needed help removing clothes to use the toilet. Appellant

also helped Julie wipe with toilet paper after using the toilet. Appellant often

would use the same bathroom as the children.

9
 Appellant further testified that both families’ clothes were sometimes

washed together, and that clothes belonging to Julie and to his youngest daughter

often got mixed up. He stated that there was a chance he could have touched

Julie’s underwear if she left them on the floor with her dirty clothes and he picked

them up. Appellant’s counsel also elicited testimony from appellant’s wife Brenda

that appellant may have assisted in washing Julie’s clothes, and that appellant

sweats heavily.

During closing argument, appellant’s attorney addressed the DNA evidence,

arguing to the jury that it was not indicative of appellant’s guilt:

All right. So, we’ve got the underwear. Let’s talk about that. I
guess the best way to look at it and see how that helps you, if any, in
deciding whether or not the State proved their elements beyond a
reasonable doubt is to consider the testimony of the DNA expert. And,
yes, when I asked her questions, I worded them very carefully. It’s my
job, but I wanted to pin her down. And we could have brought an
expert in here.

We could have gotten a DNA expert and brought the DNA
expert in here, had our DNA expert testify, and say the same thing or
something else, but then, of course, the State is going to get a chance
to ask questions and say: Well, they paid you to come in here. We
didn’t need to do that. This expert, the State’s own expert, told you
exactly what we believe and wanted you to hear, that there’s nothing
about those panties that shows that Mr. Nieves sexually abused -- that
he licked the sexual organ, put his mouth on the sexual organ of
[Julie]. And the State’s making a point about, well, the primary -- let
me back up. The State’s making a big point about the fact that the
primary contribution of DNA in those panties is from Mr. Nieves and
trying to suggest to you that that couldn’t have come just from casual
contact, from incidental contact, or from surface to surface -- from
contributor to surface onto those panties contact, but that’s not what

10
 the DNA expert said. She said that she could not say with a reasonable
degree of scientific certainty that that’s how it happened, that it was
from -- first of all, she can’t say it’s saliva. Second of all, she can’t say
that it was directly from the contributor, Mr. Nieves, to the panties. Or
she – you know, and she can’t say that it was Mr. Nieves to her body
to the panties. We just don't know how that got there. And there are
many explanations that are just as consistent with innocent activity as
there are with any other activity. There is no solid, believable proof
that the DNA on the panties from Mr. Nieves got there because he
licked her. It’s just not. That’s not what she said. You heard the
testimony. You heard it.

There’s someone’s else DNA on there, too, another male
contributor, but the State will have you believe, well, that’s probably,
probably, incidental contact because there’s not so much of it there.
Maybe it wore off, but what is that? They’re going to say: Well,
what's it doing in the crotch of the panties? Well, what’s this other
DNA doing in the crotch of the panties? And what about the rest of
the panties? We didn’t hear anything about any DNA from anywhere
else on the panties. We didn’t.

D. Analysis

We agree with the State that trial counsel’s representation related to the

DNA evidence was not constitutionally deficient.

Appellant did not raise his ineffective-assistance-of-counsel claim in a

motion for new trial nor did he present any evidence in support of his claim to the

trial court. Id. It is easy to glean from the trial transcripts, however, what trial

counsel’s strategy was with regard to the DNA evidence. See Ex parte Gutierrez,

337 S.W.3d 883, 896 (Tex. Crim. App. 2011) (“Although there is no explicit

explanation from counsel why he did not ask for [DNA] testing, counsel’s strategy

became clear at trial.”).

11
 Trial counsel’s strategy here was not to disprove that it was appellant’s DNA

found on Julie’s underwear. Rather, the strategy was to emphasize that there were

plausible, innocent reasons that appellant’s DNA could be found on Julie’s

underwear. In addition, appellant’s counsel cast doubt on the thoroughness of the

police investigation by questioning why other areas of the underwear were not

tested for DNA material. Each of appellant’s ineffective-assistance arguments—

viewed in context of this strategy—fail here. Garza v. State, 213 S.W.3d 338, 348

(Tex. Crim. App. 2007) (if the reasons for counsel’s conduct do not appear in the

record and there is at least the possibility that the conduct could have been

grounded in legitimate trial strategy, an appellate court must defer to counsel’s

decisions).

Ethnicity

Appellant testified that he is Puerto Rican. In his first issue, appellant argues

that “there is no plausible basis for trial counsel’s failure to raise appellant’s

Hispanic heritage on cross examination of the State’s DNA expert and in closing

argument.” He insists this failing was significant in light of the statistical evidence

presented by Pierce, the State’s DNA expert. Pierce testified that 1 in 285

Hispanic males would match the Y-STR profile derived from the DNA material

found in Julie’s underwear. Appellant points out that statistic “is significantly

12
more favorable to appellant than the 1 in 1.685 statistic for Caucasians and the 1 in

1,601 statistics for African-Americans.”

The jury heard evidence that appellant was Hispanic. Although appellant

insists that his counsel should have “raised appellant’s Hispanic heritage” when

cross-examining Pierce, he does not argue that there was any more favorable

statistical information to be derived from Pierce than that already heard by the jury.

Appellant’s counsel thoroughly cross-examined Pierce in a way that effectively

bolstered the defense that there were innocent explanations for the presence of

appellant’s DNA on Julie’s underwear. Appellant has not established that

counsel’s strategic decision to focus cross-examination of Pierce on the innocent

ways in which appellant’s DNA could find its way onto Julie’s underwear rather

than trying to convince the jury to acquit because of a 1 in 285 chance that the

DNA material found in Julie’s underwear could match a different Hispanic male

“fell below an objective standard of reasonableness.” McNeil v. State, 452 S.W.3d

408, 413 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).

As for counsel’s failure to raise, during closing arguments, the difference in

statistical probabilities of a DNA match between Hispanic males and Caucasian

males, we recognize that counsel’s decision about what evidence and arguments to

include and emphasize in closing argument is inherently tactical and “need[s] to be

made based on the way a trial is unfolding, the trial strategy employed, the

13
experience and judgment of the defense attorney, and other factors.” Taylor v.

State, 947 S.W.2d 698, 704 (Tex. App.—Fort Worth 1997, pet. ref’d). Appellant’s

counsel focused his closing argument on numerous places that the jury could find

reasonable doubt. He urged the jury to believe appellant’s testimony that he did

not sexually assault Julie, and to look to Julie’s lack of memory about certain

things when she was testifying. He pointed to inconsistencies in Noemi’s

testimony and her incentives to cooperate with the police even if it meant lying

about appellant. Finally, counsel argued that there were plausible innocent

explanations that would account for appellant’s DNA on Julie’s clothes.

Appellant has not shown that his counsel’s failure to emphasize the

statistical significance of appellant’s ethnicity as it relates to the DNA evidence

was not pursuant to a reasonable trial strategy. We overrule appellant’s first issue.

DNA Match

In his second and third issues, appellant argues that his trial counsel’s

representation was deficient because he (1) failed to object when State’s counsel

stated that appellant’s DNA “matched” the male profile of the DNA found on

Julie’s underwear, and (2) told the jury during closing argument that appellant was

“the primary contribut[or]” of DNA found in Julie’s underwear. The first

complaint is based upon counsel’s failure to object to this exchange during the

State’s cross examination of appellant:

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 Q. Yes. And you heard the testimony that there was a full male
profile that was identified from the inside crotch of the panties and
that was identified and documented before you even provided a
sample to law enforcement. Did you understand that?

A. I do.
Q. Okay. And once you gave your DNA sample, your DNA
matched to the male profile --
A. Correct.

Q. -- that had been found on the inside crotch of the panties?

A. Correct.

Appellant argues here that the State’s characterization of appellant’s

matching the DNA male profile was a “gross mischaracterization of the facts and

misleading.” He further argues that there “is no plausible trial strategy for

appellant’s trial counsel’s failure to object to this questioning from the

prosecution.”

His second complaint relates to his trial counsel’s referring to him, during

closing argument, as a contributor to the DNA found in Julie’s underwear:

The State’s making a big point about the fact that the primary
contribution of DNA in those panties is from Mr. Nieves and trying to
suggest to you that that couldn’t have come just from casual contact,
from incidental contact, or from surface to surface -- from contributor
to surface onto those panties contact, but that’s not what the DNA
expert said. She said that she could not say with a reasonable degree
of scientific certainty that that’s how it happened, that it was from --
first of all, she can’t say it’s saliva. Second of all, she can’t say that it
was directly from the contributor, Mr. Nieves, to the panties. Or she –
you know, and she can’t say that it was Mr. Nieves to her body to the
panties. We just don’t know how that got there. And there are many

15
 explanations that are just as consistent with innocent activity as there
are with any other activity. There is no solid, believable proof that the
DNA on the panties from Mr. Nieves got there because he licked her.

Appellant contends that calling his DNA a match or contributor is erroneous

because of the probability that 1 in 285 Hispanic males match the Y-STR profile.

Further, he contends that there “is no conceivable strategic purpose for appellant’s

trial counsel to make the statements he did regarding the DNA evidence in closing

argument.”

The jury heard detailed testimony from Pierce about the process of DNA

profiling, and Pierce was careful to clarify several times that the results did not

mean that appellant was a “match”:

A. . . . . And the interpretation part is basically, again, I’m
looking to see is this profile from the evidence consistent with a
known person’s profile and if so, what do I do with it. If it’s not
consistent, I will exclude that person. I will say this person did not
contribute the DNA, they’re excluded. If the DNA profiles are
consistent between each other, I will use language which is
"included." And I can say this person is included as being a possible
contributor. And what I will do then is I will generate a statistic for
that inclusion . . . .
....

Q. Ma’am, can you go ahead and compare that known profile
that came from the pink panties to the known profile of Albert
Nieves?
....

A. For both the STR and Y-STR. So, in terms of the pink
panties, I’ll just say that the DNA results, there was a mixture of
DNA. The mixture in the STR profile, there was a -- what's called a
16
major contributor, meaning someone contributed more DNA than the
other person who contributed, and that major contributor was [Julie].
And then there was a what I call minor allele, meaning somebody
contributed in a less amount for a minor allele, and that was from the
first report.
And then I had developed a Y profile from the panties, as you
see on the bottom chart. And that, too, was what I called a mixture. I
said there were two males in that mixture. And in this chart, I had
made the concl -- by looking at this chart, I made the conclusion that
Mr. Nieves could not be excluded as a contributor to this Y profile.
And then I generated a statistic to back up that inclusion.

Q. How do you know that Mr. Nieves cannot be excluded? Can
you take us through these loci that are depicted here?
A. Sure.
Q. How do you know that?

A. the numbers in this location and this location, this location,
every time there was something detected in the pink panties, that
allele was consistent with Mr. Nieves’ alleles.

Q. For example, if we look at this first allele, what is the
number for the known saliva of Albert Nieves?
A. That location is a 13.
Q. And for the pink panties, what was the result there? What is
the number?

A. That was also a 13.

Q. Okay. And if we go along this entire row for these 16 -- is it
correct to say alleles or 16 loci?

A. Yes, locations.

Q. Do all 16 loci match to Albert Nieves?
A. Let me just make one correction because – I’m sorry. Can
you repeat the question?

17
 Q. Okay. Just walking through this chart, how do you know
that the Y-STR profile that was from the pink panties is Mr. Nieves’
or that he cannot be excluded?

A. Right. I’m not saying it’s Mr. Nieves.’ I’m saying he cannot
be excluded because there is consistency in each location I tested.
Given the detailed testimony by the State’s expert, it is unlikely that the jury

was unduly confused by the complained-of reference to appellant as a “match” or

“contributor.” More importantly, trial counsel’s failing to object to the State’s

characterization of the “match” and his own reference to appellant as a contributor

is consistent with the trial counsel’s strategy of not disputing that it was likely

appellant’s DNA materials found on Julie’s underwear, but that there were

innocent explanations for that. We have already rejected appellant’s argument that

such a strategy was not objectively reasonable. And the goal of appearing open

and honest with the jury has been recognized as a plausible trial strategy for both

failing to object and for making concessions during closing arguments. See, E.g.,

Bailey v. State, No. 14-04-00325-CR, 2006 WL 348132, at *6 (Tex. App.—

Houston [14th Dist.] Feb. 14, 2006, no pet.) (mem. op.; not designated for

publication) (“[C]ounsel’s failure to object to the tape itself may have constituted a

plausible trial strategy, such as a plan to appear open and honest with the jury.”

(citing McKinny v. State, 76 S.W.3d 463, 473 (Tex. App.—Houston [1st Dist.]

2002, no pet.); Stroman v. State, 69 S.W.3d 325, 332 (Tex. App. —Texarkana

2002, pet. ref’d); Varughese v. State, 892 S.W.2d 186, 196 (Tex. App.—Fort

18
Worth 1994, pet. ref’d)); Thompson v. State, 915 S.W.2d 897, 904 (Tex. App.—

Houston [1st Dist.] 1996, pet. ref’d) (concluding that trial counsel’s stating in

closing argument during guilt-innocence phase that he and defendant believed they

“should not insult people’s intelligence and the real issue in this case we have

always believed is one of punishment” was part of a plausible trial strategy, in light

of significant evidence of guilt, “to appear open and honest to the jury in hopes of

mitigating punishment.”).

Appellant has not shown that his counsel’s failure to object to the State’s

characterization of his DNA as a “match” or that counsel’s conceding that

appellant was a contributor to the DNA found on Julie’s underwear was

objectively unreasonable or inconsistent with counsel’s reasonable trial strategy of

focusing on innocent ways in which appellant’s DNA could have made its way

onto Julie’s underwear. We overrule appellant’s second and third issues.

DNA Expert

In his fourth issue, appellant argues that his trial counsel’s not hiring a DNA

expert amounted to ineffective assistance. He cites two cases for the proposition

that “failure to present expert testimony can constitute ineffective assistance of

counsel.” See Ex Parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005) (failure to

present expert medical testimony in murder trial was ineffective given the

relevance of the cause-of-death to the defense and the record indicating that the

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decision was “not a ‘strategic’ decision, it was an economic one.”); and Wright v.

State, 223 S.W.3d 36 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (failure to

investigate therapy notes about child complainant was ineffective given

“appellant’s trial counsel did not have a strategic motive for not fully investigating

the complainant’s therapy sessions or utilizing an expert to review [therapist’s]

notes or assist in the cross-examination of witnesses”). Appellant acknowledges

that his trial counsel explained in closing argument to the jury that appellant did

not need his own expert because the State’s own expert provided all the

information appellant needed in support of his theory, but contends that

“appellant’s trial counsel did not understand what the State’s DNA expert was

saying.”

This case is distinguishable from Briggs and Wright. Nothing in the record

here indicates that trial counsel did not sufficiently understand the DNA evidence

or that counsel did not hire a consulting (as opposed to a testifying) expert to aid

his understanding of the science or develop his defensive strategy. In contrast with

the records in Briggs and Wright, there is no affirmative evidence here that

counsel’s decision to not call DNA expert to testify at trial was driven by non-

strategic reasons. And counsel effectively utilized the State’s expert in this case

to make his point that the DNA evidence was not dispositive of appellant’s guilt.

In re Napper, 322 S.W.3d 202, 247 (Tex. Crim. App. 2010) (recognizing that, in

20
some cases, “[c]ross-examination may render unnecessary the presentation of

one’s own expert”); Skinner v. State, 293 S.W.3d 196, 202-03 (Tex. Crim. App.

2009) (failure to hire expert to do additional DNA testing was not ineffective

assistance given trial counsel’s explanation that “he did not ask for testing because

he was afraid the DNA would turn out to be appellant’s and that “conducting its

own DNA test would also have deprived the defense of its primary argument at

trial that the government conducted a shoddy investigation”); see also Hawkins v.

State, 278 S.W.3d 396, 403 (Tex. App.— Eastland 2008, no pet.) (appellant did not

show that trial counsel’s failing to present DNA expert witness was ineffective

assistance when it “has not been shown to what that expert would have testified”).

Appellant has failed to demonstrate that trial counsel’s failure to present a

DNA expert witness at trial was objectively unreasonable or inconsistent with

counsel’s reasonable trial strategies of focusing on (1) innocent ways in which

appellant’s DNA could have made its way onto Julie’s underwear, and (2) the

investigators’ failure to identify the other source of male DNA on the underwear.

We overrule appellant’s fourth issue.

Cumulative error

Finally, in his fifth issue, appellant argues that the cumulative effect of trial

counsel’s ineffective assistance regarding the DNA evidence amounted to a denial

of due process. Having found no ineffective assistance related to trial counsel’s

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handling of the DNA evidence, there can be no cumulative error. Gamboa v. State,

296 S.W.3d 574, 585 (Tex. Crim. App. 2009) (“Though it is possible for a number

of errors to cumulatively rise to the point where they become harmful, we have

never found that ‘non-errors may in their cumulative effect cause error.’”)

We overrule appellant’s fifth issue.

HEARSAY STATEMENT

In his sixth issue, appellant argues that the trial court erred by overruling his

hearsay objection during the direct examination of Julie’s father, Lincon:

Q. Did your wife tell you that the defendant had sexually
abused Lizzie or did Lizzie tell you that?

A. Lizzie –
DEFENSE COUNSEL: I object to the leading question, Your
Honor. And I object to the hearsay.

THE COURT: Overruled.

Q. You can answer.

A. Julie – Noemi asked her to tell – Julie to tell me. Julie told
me.
“Hearsay” is a statement, other than one made by the declarant while

testifying at trial, offered in evidence to prove the truth of the matter asserted. TEX.

R. EVID. 801(d). An out-of-court “statement” need not be directly quoted in order

to run afoul of the hearsay rules. See Head v. State, 4 S.W.3d 258, 262 (Tex. Crim.

App. 2009).

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 Pursuant to Rule 44.2(b), an error is not reversible error unless it affects a

substantial right of the defendant. A substantial right is affected when the error has

a substantial and injurious effect or influence in determining the jury’s verdict.

Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). When conducting a Rule

44.2(b) harm analysis based upon the erroneous admission of evidence, an

appellate court should consider everything in the record, including:

[A]ny testimony or physical evidence admitted for the jury’s
consideration, the nature of the evidence supporting the verdict, the
character of the alleged error and how it might be considered in
connection with other evidence in the case, the jury instructions, the
State's theory and any defensive theories, closing arguments, voir dire,
and whether the State emphasized the error.

Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim. App. 2005).

Appellant argues that Julie’s “statement to her father about the alleged

assault is hearsay.” TEX. R. EVID. 801. He further contends that this statement

“does not fit the hearsay exception of an outcry statement because Lincon [] is not

the first person to whom Julie described the alleged sexual assault.” TEX. CODE

CRIM. PROC. ANN. art. 38.072.

Failure to object to the same evidence offered elsewhere at trial waives an

objection to the admission of evidence. TEX. R. APP. P. 33.1(a)(1)(A); Hitt v. State,

53 S.W.3d 697, 708 (Tex. App.—Austin 2001, pet, ref’d) (“Overruling an

objection to evidence will not generally result in reversal where other evidence of

that same fact was received without objection, either before or after the

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complained-of ruling, regardless of whether the other evidence was introduced by

the defendant or the State.”).

Appellant failed to object to Noemi’s testimony that Julie told Lincon about

the sexual assault:

A. I asked her if we could tell her daddy.

Q. What was her demeanor like when you asked her that?

A. She didn’t – she hesitated, but I asked her again if we could
please tell her dad, that we could trust him, and she said yes.

Q. So where did you guys go?
A. So, we went to our room, to the master, my husband and I.
Q. What was Lincon doing in the master bedroom?

A. He was in the bed, reading.
Q. What happened next in that room?

A. So, I told him that Julie wanted to say something.
Q. And what happened?
A. She told him what she had told me.
....

Q. After Julie told your husband what she had told you – well,
first of all, who told him first that Julie was saying that A.J. had licked
her. Who told him first?

A. Julie told him.
Because the same information was introduced through Noemi’s testimony,

appellant has not preserved his complaint about the trial court overruling his

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hearsay objection to Lincon’s testimony that Julie is the person who told him about

the sexual assault.

We overrule appellant’s sixth issue.

SUFFICIENCY OF THE EVIDENCE

In his seventh issue, appellant argues that “the evidence was insufficient to

support a conviction for aggravated sexual assault of a child under 14 years of

age.”

In evaluating the legal sufficiency of the evidence, we review all the

evidence in the light most favorable to the trial court’s judgment to determine

whether any rational jury could have found the essential elements of the offense

beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979));

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d).

We examine legal sufficiency under the direction of Brooks, while giving

deference to the responsibility of the jury “to fairly resolve conflicts in testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing

Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2788–89).

A person commits the offense of aggravated sexual assault of a child if, with

a child younger than fourteen years, the person intentionally or knowingly causes

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the sexual organ of the child to contact or penetrate the mouth, anus, or sexual

organ of another person, including the actor. TEX. PENAL CODE ANN. §

22.021(a)(2) (West 2011).

Appellant argues that the evidence is insufficient because the “only evidence

in this case is an outcry statement from a four year old child and DNA evidence

that merely finds that appellant cannot be excluded.” But the jury heard Julie’s

testimony about appellant, on more than one occasion, licking her “privates,” i.e.,

causing her sexual organ to contact appellant’s mouth. TEX. PENAL CODE ANN. §

22.021(a)(1)(B), (a)(2)(B)(West 2011). Julie described the licking motion and

demonstrated the act and appellant’s position with anatomically correct dolls. The

uncorroborated testimony of a child victim is alone sufficient to support a

conviction of aggravated sexual assault of the child. TEX. CODE CRIM. PROC. ANN.

art. 38.07 (West Supp. 2013); Johnson v. State, 419 S.W.3d 665, 671–72 (Tex.

App.—Houston [1st Dist.] 2013, pet. ref’d). Julie’s trial testimony was also

consistent with Noemi’s testimony about Julie’s initial outcry. In addition, the jury

heard evidence that appellant could not be excluded from the DNA profile from the

swab of Julie’s underwear. Reviewing the record in the light most favorable to the

verdict, there is sufficient evidence for a rational trier of fact to have concluded

beyond a reasonable doubt that appellant was guilty of each element of aggravated

sexual assault of a child. Johnson, 419 S.W.3d at 671.

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 We overrule appellant’s seventh issue.

CONCLUSION

We affirm the trial court’s judgment.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).

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